Legislation debated Thursday would put the Supreme Court administrator — a central figure in last session’s conflict between the GOP and judicial branch — under the purview of the clerk of the Supreme Court, an office held by a partisan elected official.
Sen. John Fuller, R-Whitefish, is carrying Senate Bill 230, which would give the Supreme Court clerk power to appoint, direct and terminate the court administrator.
Bowen Greenwood, a Republican, holds the clerk's office, which is within the judicial branch. Greenwood noted whether the bill passed or not, the court administrator would be appointed by a member the judiciary. As clerk, his office is the "front door" to the state's high court, he said; filings come through his office and he manages public access to documents.
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"I don't see it removing the Supreme Court from the chain of command at all," he said.
But opponents to the bill said the proposal was an instance of legislative overreach.
Forming the backdrop to Thursday's hearing is the showdown that took place last session two years ago between Republicans in the Legislature and the executive branch against the judiciary. Beth McLaughlin, the Supreme Court administrator, had deleted several emails containing polling conducted among judges on pending legislation so the Montana Judges Association could form policy positions for testimony in committees like this one.
Republicans seized on the missing emails, firing up a select committee to investigate record keeping practices and claims of judicial bias in the courts. The committee issued subpoenas for judicial records, only to see those efforts shot down by the courts, which ruled the Legislature was acting outside its authority under separation of powers issues.
Bruce Spencer, representing Montana Judges Association, said likened SB 230 to a hypothetical bill that would put the secretary of the state Senate under the governor's office.
"This bill reaches into a branch of government and removes a vital cog in how its run," he said. "It's, on its face, causing problems with separation of powers."
A representative from the State Bar Association went a step further, saying the bill violates the state Constitution.
Fuller said a legal analysis in the bill drafting process raised no issue with the constitutionality of SB 230. A review of the drafting communications found a legal analysis did note that the Constitution states the Supreme Court has the purview of all other courts, as well as the court administrator, but SB 230 would put that position under a different, elected official.
"As drafted, it is unclear if placing the court administrator under a position in the Judicial Branch that is subject to an election is an intrusion on the judicial power of the Supreme Court," the legislative attorney wrote to Fuller on Jan. 17. Without any case law on point, the bill did not meet the standards for issuing a legal review note, they added.
The attorney suggested Fuller add a "severability" provision in the bill, which allows the rest of the bill to remain in law if one or more parts are struck down as an unconstitutional intrusion on the separation of powers.
The bill had no proponents, but among its dissenters was Perry Miller, the Blaine County justice of the peace, who said the administrator's direction coming from the chief justice was "imperative."
Education, guidance and policies that flowed from the chief justice through McLaughlin's role as court administrator was what kept the courts in motion during the Covid-19 pandemic, even while nearly every other government function closed off to the public, he said.
"It is imperative that we garner our leadership and our education from the Supreme Court of Montana," Miller told the committee. "I've been on the bench for almost 30 years. I am extremely, extremely passionate about the fairness and the dignity of the courts. And the bottom line is, without the guidance of the chief justice, the highest court in the state of Montana, the court system will not function as well as it does now."
McLaughlin was not present at Thursday's hearing and did not testify remotely. Greenwood, meanwhile, told the Senate Judiciary Committee on Thursday he was "comfortable" with the proposal.
"The Legislature points and I march," he added. "My job as a public servant is to do the duties you assign me."